"Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?"
That is the precise question judges of the Fifth Circuit Court of Appeals are asking the Obama Administration.
During a panel hearing this week on a separate ObamaCare case, the federal appeals court demanded that the Obama Justice Department provide a memo laying out whether the Obama Administration believes that federal courts have the power to strike down unconstitutional acts of Congress.
Earlier this week, President Obama warned the high Court that overturning ObamaCare would be an “unprecedented, extraordinary step” of “judicial activism,” calling the Justices an “unelected group of people.”
I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, ObamaCare -- to what he termed broad consensus in majorities in both houses of Congress.
Judge Smith continued, “That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority. . . . And that's not a small matter.”
The court gave the federal government until noon on Thursday to respond. Judge Smith specifically asked for the Obama Justice Department’s position on “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.” He reiterated, “I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases.”
Today, Attorney General Holder acknowledged that his office would comply with the court’s order. He stated, “We respect the decisions made by the courts since Marbury v. Madison . . . Courts have final say.”
In 1803, the Supreme Court decided Marbury v. Madison establishing the constitutional principle of judicial review – that the courts are the final arbiters of the constitutionality of acts of the legislature. The Supreme Court has since declared over 1,300 laws unconstitutional – that’s an average of six a year.
As a former law professor, President Obama should understand the difference between judicial activism – a court making law – and judicial review – and court determining if the law is constitutional.
But this isn’t the first time the Obama Administration has said one thing in public and then argued something different in court – remember whether ObamaCare contained a tax or a penalty. Now, President Obama will once again have to be held accountable for his words.